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Mikko Huttunen, researcher / PhD student (LLM) Spring 2017

International Aviation Law

A course with focus on research & writing


General stuff
relating to the course
The object and purpose
Object: to familiarize you with the general and specific topics of
international aviation law (air law)

Purpose: to teach you retrieval and presentation of information in a


documented and understandable manner
Timetable
6.2 (today): an introductory lecture (max. 3 h)

General aspects of international aviation law


Slides online @ https://ulapland.academia.edu/MikkoHuttunen

6.226.3 (deadline 26.3 @ 12:00): free-form work

Prepare a documented, scientific paper


concerning one of the given topics
Specific instructions after this lecture via email

26.39.4 (deadline 9.4 @ 12.00): review


review another students paper
Specific instructions also in the email
Credits
You must complete ALL ON TIME to get the credits. Late submissions
may result either in disqualification or additional assignments.

ONEVAL0030: 10 pages + review => 4 ECTS

ONPOOL83 (C.2): 10 pages + review => 4 credits

Partial credits wont be awarded for partial submissions.


Grades
The course will be graded 15, depending on the paper. Grading stems
from criteria included in the curriculum, ca.:

The quality of the text substance-wise and the difficulty of the topic
Logical presentation
Using correct and proper English
The use, quality and correctness of documentation (footnotes)
Appearance

1 = poor, 2 = okay, 3 = good, 4 = very good, 5 = superb


Topics for the paper
1. History of air law
2. International civil aviation organization (ICAO)
3. Air service agreements (bilateral and multilateral)
4. Airline investment and global alliances Important to keep a legal focus.
5. Aviation safety (not security)
6. Accident investigation
7. Aircraft hijackings and bombings (aerial terrorism)
8. Air rage (on-board violence)
9. Aviation and the environment (emissions and noise)
10. Air carrier liability for damage to passengers, luggage and cargo
11. Air carrier liability for delays, overbooking and cancellation
12. Air carrier liability for surface damage
13. Product liability (EU & USA)
14. Aircraft financing
15. Unmanned aircraft
16. Military (state) aviation, incl. airspace violations, jurisdiction, standardization (NATO
& EMACC), etc.
17. EU internal market and competition regime for aviation
18. The structure of airspace
19. Legal issues with low fare airlines (Ryanair, Easyjet, Norwegian)
20. Aircraft insurance
21. International air traffic management
22. No-fly and air defence identification zones (NFZ, ADIZ)
23. Interception of civil aircraft
General aspects of
international aviation law
(air law, law of the air)
Why aviation law? Issues?
The focus
International aviation law focuses on problems created by civil air traffic
that crosses borders by traffic routes or by financial arrangements.

The right of airlines to operate between or within different countries


The liability of air carriers for passengers, baggage and cargo
Aircraft registration, financing, ownership and insurance
Safety and accident investigation
Security from unlawful intervention
Exemplary questions
Under what conditions can Lufthansa operate a route between Frankfurt
and Sao Paulo?
How does agreement or regulation X effect competition?
How can passengers seek $$$ for injuries from a foreign airline?
How can security interests (e.g. mortgages) in aircraft be enforced, if the
aircraft is leased and operated in another state?
How should an international aviation accident be investigated?
Which states have the right to punish a hijacker?
What effect does the EU have on all this?
Recent issues
In recent years, at least the following themes have been discussed a lot:

Unmanned aircraft aka. drones


Apply old rules and/or make new rules?
Aircraft emissions
Cyber security
Low-fare airlines: financing, passengers rights and workers rights
European air traffic management: Single European Sky
Public and private dimension
Public international law (treaties, conventions, soft law) covers most
aspects of international aviation.

Determines the rights and obligations of both states and airlines in


a rather comprehensive manner.

But in some cases, public law delegates enforcement to private parties and
national courts.

For example, carriage contracts (airline tickets, etc.) are regulated by the
Warsaw Convention, but individual passengers must take action to ensure
their rights.
Cooperation and equal treatment
International aviation requires
a lot of collaboration between
states and airlines to function
effectively and safely.

Additionally, the economic risks


are often significant.

States have created written


agreements to cover most
problems.
States have opted often for
diplomacy instead of taking
legal action.
Sources of international aviation law
1) Treaties (international agreements, conventions) very important!

International aviation law has followed a treaty-based approach.

1944 Convention on International Civil Aviation (Chicago Convention)

191 parties: almost all countries in the world


The constitution of the air

Contains general principles on, e.g.:

Flight over the territory of another state


Facilitating air navigation (customs, airports)
International Civil Aviation Organization (ICAO)
About Chicago Convention
The main thing I want to stress is that the Chicago Convention is a

>>FRAMEWORK<<

You cannot solve disputes with the Convention alone.

The Convention gives a lot of room to other treaties


and to regulate matters on the national level.

Unification has happened gradually to promote


efficiency and safety.
The Annexes (SARPs, see later) to the Convention have been crucial in
the unification process.
Sources of international aviation law
Other multilateral treaties (ICAO list @ http://bit.ly/1SjVN74) are also very
important, for example:

1944 Freedoms of the air agreements


1929 Warsaw Convention (+ protocols) and 1999 Montreal
Convention, dealing with air carriage
1948 Geneva and 2001 Cape Town Treaty + aircraft equipment
protocol, dealing with aircraft as property
1963 Tokyo, 1970 Hague, 1971 Montreal, 2010 Beijing: aerial
crime conventions

There are also bilateral treaties, mostly concerning air traffic rights.

For example Finland has a treaty with Russia, allowing overflights.


Sources of international aviation law
2) Annexes to the Chicago Convention

Art. 37 of the Convention: each state must collaborate in securing the


highest practicable degree of uniformity in regulations, standards,
procedures, etc.

ICAO given the mandate to adopt and


amend international standards and
recommended practices and procedures

SARPs
(PANS) (procedures for air navigation services)
Sources of international aviation law
SARPs are not legally binding like the Convention itself, but nearly always
followed.

If a state does not comply with a SARP, it must notify ICAO of the
differences between its own practices and the standard (Art. 38).

Some topics:

Communications systems and air navigation aids


Characteristics of airports
Rules of the air and ATC practices
Licensing of personnel
Airworthiness and registration of aircraft
Customs and immigration procedures
Distress and accidents
Sources of international aviation law
3) Documents by regional arrangements

Regional arrangements include at least the ACAC, AFCAC, ASECNA, CLAC,


COCESNA, ECAC, EU (including EASA) and Eurocontrol

Always in harmony with treaties and SARPs, but more specific.


Statements, recommendations, decisions, regulations: the level of
cooperation varies greatly between the arrangements.
Sources of international aviation law
The cooperation and harmonization is strongest in Europe: now almost all
civil aviation is regulated by the EU and its sub-organs.

Air transport and market issues


Passenger rights
Safety
Security
Environmental protection
Airports
Air traffic management
Personnel
Competition rules

The aim is to create a Single European Sky


= SES
Sources of international aviation law
4) National (domestic) legislation

Because states have chosen a treaty-based approach, there has always


been less need for state-specific legislation. However:

Treaty provisions and SARPs do not cover everything.


In many countries, treaties must be enacted through national law.
Enforcement is almost always subject to national procedures.
Country-specific special features
Regional vs. national legislation
Regional arrangements always precede national legislation.

The EU has almost full competence to regulate civil aviation.


National legislation simply follows Union Regulations and
Directives, and completes them where they are lacking.
Strong harmonization with some exceptions

Other regional institutions operate more loosely.


National legislation is more independent.
Sources of international aviation law
5) Judicial decisions

The International Court of Justice (ICJ), which often solves major


international disputes, has not played a role in intl. aviation law.

Chicago Convention prioritizes negotiations and ICAO Council as the body


solving disputes: only the Councils decision may be appealed to the ICJ.

But even disputes in the Council are non-existent


Only one ICJ aviation case
The only major aviation case which has been referred to the ICJ was the
1988 Lockerbie bombing incident, resulting in hundreds of casualties.

Dispute between Great Britain and USA vs. Libya


Libya refused to extradite (hand over) the bombers
Although ICJ gave its judgement on preliminary objections, the
matter was ultimately solved diplomatically.
Arbitrations
There has of course been quite a few arbitrations and WTO disputes
between states concerning the economic aspects of intl. aviation law.

Examples:

Interpretation of the air transport services agreement between the


United States of America and France (1963)
Heathrow airport user charges (1992)
Measures affecting the export of civilian aircraft (1999)
Private case law
Legal disputes between private entities are more common in aviation. These
concern for example aircraft financing and compensation for lost cargo.

Still: many are solved by agreement, e.g. because of strict liability


Sometimes lead to lengthy trials in domestic courts or ad hoc
arbitrational tribunals

More case law


Case law more relevant
Sources of international aviation law
4) Customary international law

Customary law is not a very important source in international aviation law.

International aviation is a relatively recent phenomenon.


Custom hasnt had time to develop.
Treaty-based approach, unified rules
There has been less need to discuss custom.
Some concepts like air sovereignty are more subject to custom.
Sources of international aviation law
5) General principles of (international) law

There are no independent general principles of international aviation law.

Other general principles of (international) law may play a role in


argumentation.

For example in liability issues


Very case specific
Core provisions of
the Chicago Convention
Article 1 Air sovereignty
The contracting States recognize that every State has complete and
exclusive sovereignty over the airspace above its territory.

= States can control who


enters their airspace

Above the high seas, control


is primarily exercised by the
state where the aircraft is
registered.
Article 2 Territorial scope
The territory above which States have air sovereignty:

Land areas
Territorial waters (12 nautical miles from the baseline)
Air sovereignty issues
The vertical extent of air sovereignty has not been agreed upon.

Where does airspace end and outer space begin?

Not currently a significant issue, because


such airspace cannot be utilized greatly.

Suggestions, e.g.:

19 miles
50 miles (UN astronaut threshold)
62 miles (Krmn line)
99 miles
Air sovereignty issues
Trespassing military and civil aircraft (airspace violations):

Danger to the aircraft and third parties


Disrespect of (air) sovereignty by larger military powers

Civil aircraft incidents:

1955 El Al flight 402


1973 LN114
1984 KAL007
1988 IR655
2014 MH17
Protecting civil ac from military force
1984: Article 3 bis

Every state must refrain from using any weapons against civil aircraft
Right of self-defense (UN Charter) still exists

In case of interception (= guiding the aerial intruder into safety)

Safety of civil ac must not be


endangered
States can request the ac to
land at a designated airport
Civil ac must comply with orders
States must prevent the deliberate
misuse of civil aircraft (Art. 4)
Article 3 civil and state aircraft
Aircraft used in military, customs and police services (state aircraft) are
forbidden to fly in foreign airspace without authorization.

States must also undertake that the rules concerning state aircraft
have due regard for the safety of navigation of civil aircraft.

These (and Art. 3 bis) are the only rules of Chicago Convention which apply
to state aircraft; otherwise, the Convention only applies to civil aircraft.

= aircraft other than state aircraft


The problems of distinction
1) The phrase used in services

The use (purpose), not the type of the aircraft determines whether its
civil or state.

2) The formulation military, customs and police is not exhaustive.

Makes room for other types of state aircraft, including state transports,
like Air Force One, and rescue aircraft used by authorities.
Articles 5 & 6 types of civil flight
Chicago Convention divides civil aircraft flights into two categories:

1) Scheduled route flights

++
1) + +

2) Non-scheduled charter flights

Not operated routinely


Might not be offered to the general public; not a public service
Might not be international
Scheduled flight
Examples of scheduled flight:

Finnair operating a permanent passenger route


DHL Aviation carrying regularly mail and cargo
Private jet operating a fixed route
Scheduled flight
Scheduled flight always requires permission from the overflown state.

May be obtained for a single scheduled route.


Usually bi- or multilateral air service agreements (ASAs).
EU: internal market
The conditions of the permission must be followed.

There is no obligation to allow scheduled flight: national monopoly possible.


Non-scheduled flight
Examples of non-scheduled flight:

Thomson operating a holiday flight


FedEx carrying a single load of oil refinery equipment
Private jet operating a single business trip
A humanitarian aid mission to a crisis zone
Non-scheduled flight
Aircraft which operate non-scheduled have an undeniable right to:

Fly into the airspace of other states


Fly in transit non-stop across such airspace
Make stops for non-traffic purposes
Take on or disembark passengers, cargo or mail
Non-scheduled flight
However, the overflown state may still require the aircraft to:

Land
Follow prescribed routes
Obtain permission for flight; usually file a flight plan
Follow regulations, conditions or limitations when transporting

For this reason, bi- and multilateral agreements sometimes also concern
non-scheduled (charter) traffic.

Again: EU internal market.


Art. 7 Cabotage
= operator from one state carries passengers, mail or cargo within the
territory of another state

For example: Norwegian operating between Rovaniemi and Helsinki.

States have the right to refuse aerial cabotage, even if non-scheduled.

Furthermore, cabotage privilege cannot be granted exclusively.


EU: internal market with possible temporary exceptions
The reality?
Articles 57 emphasize air sovereignty: the airspace is not free for all.

Treaty-based approach: treaties are necessary to create and


maintain air transport.

Certain global treaties


But mostly thousands of bilateral agreements between single
countries
Regional arrangements (like EU)

Complexity
The reality?
The distinction between scheduled and non-scheduled is a bit arbitrary.

Commercial interests are, bottom line, very similar in both types of


flight, and they often collide.
States have exercised superfluous control over charters to promote
their national airlines.
During the past few decades, liberal policies have eased the market for
more charters.

Flexibility
Growth
Loss of national control?
A word about the freedoms of the air
= categories used to describe the trade of overflight and transport rights

Not part of the Chicago Convention, but widely cited


Art. 8 Pilotless aircraft
= unmanned / remotely piloted aircraft (UA/UAV/RPA)

Unmanned aircraft require authorization to operate in foreign airspace.

Unmanned flights must be sufficiently controlled to obviate danger to


manned civil aircraft.
About unmanned aircraft
Its important to keep in mind that the Chicago Convention and its Annexes
are really about general principles of international aviation.

The focus of ICAO is not on little quadcopters flying over your house
but long range BVLOS transport and surveillance operations.
Sight set for the future
Because operations are currently so domestic, national legislation is
the key when discussing UA.
Art. 9 Prohibited areas
States may restrict or prohibit foreign flights above certain territory.

Permanent: military necessity or public safety


Temporary: exceptional circumstances, emergency or public safety

Restrictions must not discriminate between different foreign states.


Permanent restrictions must be of reasonable extent and not unnecessarily
interfere with aviation.
P, R and D areas
There are essentially 3 types of permanently prohibited areas:

Prohibited area (P): flying is forbidden


Restricted area (R): flying is heavily restricted by set conditions
Danger area (D): there are activities which may endanger aircraft

Temporarily prohibited areas:

Tempo-R
Tempo-D
TSA
(Local) TRA
This is oversimplifying the picture
Again, we must notice that the Chicago Convention generalizes, delegates
to Annex 11 and gives room for states to regulate.

The structure of airspace is not just open and prohibited.


Areas and Zones may vary country by country.
The closer we are to airports, the more there are different zones.
There are also airspace classes (AG).
Art. 12 Rules of the air
Each state must issue its own rules of the air.

Must be uniform with Annex 2 to the Convention to the greatest


possible extent.
EU: Standardised European Rules of the Air (SERA)

States must ensure that every aircraft flying above its territory or carrying
its nationality complies with the applicable rules.

Over the high seas, only international rules (Annex 2) are followed.
So what are these rules actually?
Rules of the air are divided into two main spheres:

1) Visual (VFR): flying is based on the pilots sight.


2) Instrument (IFR): flying is based on the aircrafts instruments like
the artificial horizon, altimeter and speedometer.

Both deal with how aircraft must be operated:

Safe cruising levels and speed


Avoidance of collisions
Flight plans
Signaling
Communication with the ATC
Dealing with unlawful interference
Art. 15 Airports
The principle of equal treatment applies especially to airports.

= Airports which are open to public use must be open under uniform
conditions to the aircraft of all other states.

Applies to use of aircraft and navigation facilities.


Especially, charges must not be higher than for the domestic
carriers.

The mere right of transit over, or entry into,


or exit from airspace cannot be subject to any
fees, dues or other charges.
Arts 1720 Nationality of aircraft
Aircraft have the nationality of the state in which they are registered.

Can be registered in only one state at a time.

The registration is a national process: everything happens in accordance


with national laws and regulations.

Only minor ICAO standardization


Can contain
numbers, too
The role of registration
Registration is important, because it creates competence / jurisdiction.

The state of registry is always the most important one in deciding


what happens to the aircraft.

For urgent scenarios, like emergencies, accidents and hijackings,


other relevant states also have been issued competence.
No flags of convenience
In international law of the sea, flags of convenience have traditionally
been a major issue.

Mare liberum but the airspace is not free: its under national sovereignty.

For example: If a company bases its operation and fleet in


Afghanistan, it likely wont be allowed to operate above Europe.
ICAO and IATA have audit programs and states have black lists.

Major airlines are forced to register their fleet in reputable countries.


The shopping mall approach?
Because aircraft must be registered in reputable countries, some airlines
are pursuing other types of convenience.

According to the transport workers federation, the airline Norwegian is a


good example of the shopping mall approach:

Aircraft based at Gatwick and Spain


Leasing arrangements through a Portuguese company
Staff recruitment in Spain
Asian pilots and staff on flights to Asia
Crew training in the USA
Administrative offices in Latvia
IT department in Ukraine
Arts 2223 Facilitating formalities
The Chicago Convention recognized that formalities would continue to be a
major issue in aviation.

Requires every state to facilitate and expedite international aviation.


Requires every state to prevent unnecessary delays.
Especially customs and immigration procedures should be
harmonized.
Annex 9

Immigration Quarantine

Delays

Customs Clearance
How can formalities be reduced?
According to Abeyratne (2014):

The 1st phase (~1944): simplifying procedures.

Reducing paperwork by adopting technology


Standardizing documents
Obtaining clearance more easily
How can formalities be reduced?
The 2nd phase (~1995): focusing risk management.

Inspections concentrating less on everybody and more on known


risk factors
Smuggling
Terrorism
Illegal immigration
Enhancing the security of documents and control
Art. 25 Distress
Every state must provide such assistance to aircraft in distress in its
territory, as it may find practicable.

The owners or the state of registry of the aircraft must also be


allowed to provide the necessary assistance.
A major exception from both sovereignty and the jurisdiction of
the state of registry.

Additionally, states must collaborate


in coordinated measures when
searching for missing aircraft.
Assistance
= ATM + search and rescue services 24/7 (Annex 12)

Providing instructions during the flight


Arranging airport traffic and an ad hoc runway, if necessary
Providing fire fighting and rescue personnel
Providing medical care for injured passengers
Protecting the aircraft from damage and looting
Art. 26 Accident investigation
Aviation accidents must always be investigated when involving death,
serious injury or indicating serious technical defect in the aircraft or ATC.

Inquiry by the state where the accident has occurred.


Reports to the state of registry
The state of registry must be allowed to appoint observers.
State of operator, design and manufacture may also participate.

Investigation is regulated more precisely


by Annex 13.
The focus of investigations
= process for the purpose of future accident prevention

Gathering and analyzing information


Drawing conclusions (causes)
Making of safety recommendations

Focus is on finding the technical problems or human factors: not on


pointing fingers and issuing liability (which is difficult of course).
The excellent safety record of commercial aviation
Art. 28 Air navigation facilities
Every state must, though only as far as it is practicable:

1) Provide in its territory air navigation facilities for international aviation.


2) Adopt and apply standard systems of communications procedure,
codes, markings, signals and so on.
3) Cooperate internationally to secure the publication of aeronautical
maps and charts.
Air navigation facilities
As far as it is practicable

The type of air navigation facilities depends on the resources of the


state or the company providing the facilities.
The level of safety and security varies greatly between different
aerodromes (airports).

Standard systems, for example:

English is the default language: Aviation English


Altitudes are always in feet (ft) or flight level (FL)
Airport runway markings are similar
Aviation maps have same abbreviations, symbols and colouring
Significance
Several accidents highlight the importance of proper air traffic
management and standard systems. For example:

1956 Grand Canyon mid-air collision: lack of information due to


inadequate facilities
1976 Zagreb mid-air collision: undermanned and poorly equipped ATC,
despite congested airspace.
1977 Tenerife airport disaster: non-standard communication between a
pilot and the ATC.
1996 Charkhi Dadri mid-air collision: pilots confusion between metric /
imperial measurements
Art. 31 Airworthiness
Every aircraft engaged in international aviation must have a certificate of
airworthiness.

Issued or rendered valid by the State of registry


What is airworthiness? (Annex 8)
1) Type certification: approving the design of the aircraft
2) Certificate of airworthiness: approving an individual aircraft

Requirements vary between Flight


different types of aircraft! performance

Maintenance
(continuing Structure
airworthiness)

Design and
Crashworthiness
construction

Operating Systems and


limitations equipment
Art. 32 Licenses of personnel
Pilots and other crew members must have certificates of competency and
licences.

Issued or rendered valid by the state of registry (of the aircraft)


Licensing requirements
Licensing requirements have been specified in Annex 1 to the Convention:

Depend on the role of the person (pilot, flight engineer, ATCO).


Vary between different types of pilots.
Ratings = special conditions, privileges or limitations to the licence

Age

Experience Knowledge

Medical
Skill
fitness
Licensing requirements
Licensing is extremely important: human factors are key to aviation safety.

Human error ascribed to 7080 % of aviation accidents.


Standardization is again the key: psychological and cultural risks
must be addressed in advance. Various crews must be compatible.
The rigorous training and experience of airline pilots is one of the
reasons why civil aviation is very safe.
The design of aircraft cannot surpass the skill of pilots.
Keeping the man in the loop instead of over-automization
Art. 33 Mutual recognition
Airworthiness certificates and licences must be recognized as valid by other
states.

Only applies when the requirements for the document were the same
or higher than those of Annex 8 to the Convention.
Standardization again
For flight above its own territory, each state has the right to refuse to
recognize licences granted to any of its nationals by another state.